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Arathoon Mackertoon Arathoon Vs. Corporation of Calcutta and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtKolkata High Court
Decided On
Case NumberMatter No. 128 of 1954
Judge
Reported inAIR1957Cal79,60CWN406
ActsCalcutta Municipal Act, 1951 - Section 172(2), 172(3), 175 and 207
AppellantArathoon Mackertoon Arathoon
RespondentCorporation of Calcutta and ors.
Appellant AdvocateA.K. Sinha, Adv.
Respondent AdvocateP.P. Ghosh, Adv.
Cases ReferredGeneral v. Carlton Bank
Excerpt:
- .....thaddeus m.thaddeus.no. 1to 44 park street, commonly known as 'park mansions' 44separate premises.no. 1(consisting of old nos. 2, 3, 4, 5, 6, 31, 32, 33, 34, 35 and 36).no. 2(consisting of old nos. 7, 8, 9, 10, 11, 12, 37 38).no. 3 (consisting of oldnos. 13, 14, 15, 16, 17, 18, 39, 40,41, 42).no. 4 (consisting of old nos. 19, 20, 21, 22, 23, 24, 43).no. 5 (consisting of old nos. 25,26, 27, 44). 5 separate premises135 of1954.karnaniproperties ltd.nos.21, 23, 25-a, 25-b, 27-a, 27-b, 29, 31, 33, 35, 37, 39, 43, 45, 47, 55 and 57 park street, calcutta.no. 21(consisting of old nos. 21 and 23).no. 27a (consisting of old nos. 25a, 25b and 27a).no. 27b.no. 29(consisting of 29, 31, 33, 35, 37, 39, 43, 45, 47, 55 and 57). 4 separate premises67 of1954.dr.subodh kumar ganguly.27a,27b,.....
Judgment:
ORDER

Sinha, J.

1. A common question of law arises in this application and in five others, which have all been heard together. (Matter No. 135 of 1954 Karhani Properties --v-- The Corporation of Calcutta Matter No. 67 of 1954 -- Dr. Subodh Kumar Ganguly --v-- Assessor Calcutta Corporation and ors; Matter No. 29 of 1955 Pataki Chandra Muttylal --v-- The Assessor, Corporation of Calcutta and ors; Matter No. 45 of 1955 Bepin Behari Sadhukhan --v-- Corporation of Calcutta and Matter No. 59 of 1955 Sankar Narayan Gooptu --v-- The Corporation of Calcutta. The point arises in the following manner. Both under the Calcutta Municipal Acts 1923 and 1951, the unit of assessment is either 'land' or where there is a structure upon it, the 'land' and 'building'. The word 'building' has been denned (See Section 5 (6)). This unit is commonly referred to as 'Premises' although, the word 'Premises' is not itself defined. Thus, when we speak of a municipal premises, we generally mean, a building which includes the outhouses, boundary walls, etc., together with the land appertaining to the building. (See Corporation of Calcutta v. Moti Chand . But, both under the Act of 1923 (Section 135) and under the Act of 1951 (Section 176) a part of a premises could be separately assessed from the rest of the premises. I am of course considering the case of a common ownership. Where, the premises is subdivided because the ownership has been Sub-divided, that is quite another thing. (Section 174) Even in these applications, the Corporation has not urged that in such a case, there must still be one unit of assessment. But even where one owner had a large building, which was let out to a number of tenants, he frequently subdivided the same into a number of different premises. This was primarily done to meet the case of vacancies. In order to get remission of taxes for vacancies, notice has to be given to the Corporation. This could be clone effectively if the individual tenants had different premises numbers. Prom the point of view of the Corporation, while the Act of 1923 was in operation, it made little difference, because under Section 124, there was one fixed rate for calculating the consolidated rate (not exceeding 23 per cent, of the annual valuation). The position has however changed under the Act of 1951. Now, under Section 165, we have a graduated rate. Thus, the larger the unit, the increase in rate is progressively larger. The rate does not work out cumulatively but in progression. It is therefore not in the interest of the Corporation to sub-divide a large premises into several units. It is to its interest to have as large a unit as is possible, in every case. Inevitably therefore, it has attempted to undo what has been done in the past. Where one building under one ownership was subdivided in the past into many units, it has attempted to amalgamate them into smaller units. The two questions that have arisen therefore are;

(1) Can the Corporation effect such an amalgamation?

(2) If it has power to amalgamate, has such power been exercised in accordance with law? Before I proceed to deal with the matter it would be useful to analyse what has happened in the cases under consideration. I have set out below the position as appears from the pleadings.

CaseNo.Owner.Previouspremises numbers.Premisesnumber after amalgamation.

128 of1954.Estateof Thaddeus M.Thaddeus.No. 1to 44 Park Street, commonly known as 'Park mansions' 44separate premises.

No. 1(consisting of old Nos. 2, 3, 4, 5, 6, 31, 32, 33, 34, 35 and 36).

No. 2(consisting of old Nos. 7, 8, 9, 10, 11, 12, 37 38).

No. 3 (consisting of oldNos. 13, 14, 15, 16, 17, 18, 39, 40,41, 42).

No. 4 (consisting of old Nos. 19, 20, 21, 22, 23, 24, 43).

No. 5 (consisting of old Nos. 25,26, 27, 44).

5 separate premises135 Of1954.KarnaniProperties Ltd.Nos.21, 23, 25-A, 25-B, 27-A, 27-B, 29, 31, 33, 35, 37, 39, 43, 45, 47, 55 and 57 Park Street, Calcutta.

No. 21(consisting of old Nos. 21 and 23).

No. 27A (consisting of old Nos. 25A, 25B and 27A).

No. 27B.

No. 29(consisting of 29, 31, 33, 35, 37, 39, 43, 45, 47, 55 and 57).

4 separate premises67 of1954.Dr.Subodh Kumar Ganguly.27A,27B, and 27C, Chittaranjan Avenue.27,Chittaranjan Avenue. Three premises.One premises.29 Of1955.PatakiChandra Muttymull and his brothers, the respondents 4, 5, 6 and 7

2 2/1and 2/2 Wellington Street.2Wellington Street. Three premises.One premises.45 of1955.Bepin' Behari Sadhu-khan.115A,115B, 115C, 115D, 115E, 115F, 115G,115H, Dhurrumtolla Street.

115A,Dhurrumtollah Street (consisting of old Nos. 115A, 115B, 115C, 115D, 115E, 115F, 115G, and 115H).

1Aand 1B Hungerford StreetNo. 1,Hungerford Street (consisting of old Nos. 1A and 1B). 10 premises.Two premises.59 of1955.SankarNarayan Gooptu3A, 3B, Chowringhee Road.3A,Chowringhee Road (consisting of old Nos. 3A and 3B). Two premises.One premises.

It will be observed that though the Corporation claims that the amalgamations have been made where there is one building, it is not as if one single building has invariably been given a single number. Even in the same building, well defined and separated portions have been allotted different numbers. Thus, while theoretically the Corporation claims to have the power of amalgamating the whole of the Park Mansions into one single premises, in fact, it has been numbered into five different premises. If the Corporation has the power of amalgamation then this is more a concession than an excess of jurisdiction. The question is whether the Corporation has the power of amalgamation at all. So far, I have been talking of the 'Corporation' having power. The municipal Government of Calcutta is vested in the Corporation (Section 24). But under the 1951 Act (hereinafter referred to as the 'Act'), the municipal authorities charged with carrying out the provisions of the Act are three in number, viz. (1) the Corporation (2) the standing committees and (3) the Commissioner. Subject to the provisions of the Act and the rules made thereunder, the entire executive power for the purpose of carrying out the provisions of the Act vests in the Commissioner (Section 28). It is the Commissioner who is said to be vested with the power of amalgamation of different premises into one. I will now proceed to examine the provisions of the Act. Chapter XI of the Act deals with the imposition of the consolidated rate. As already mentioned, Section 165 establishes the rate at which the consolidated rate is to be charged. The rate is a graduated one, increasing progressively with the annual valuation. Section 172 deals with the general valuation, whereby the annual value is determined, ward-wise, and such annual valuation remains in force for a period of six years and may be revised thereafter at the termination of successive periods of six years (Section 172 (2)). It is plain therefore that the computation of the annual value of a given premises at a general valuation may be-

(a) A first valuation, when it has never bee valued before;

(b) A revised valuation or a revaluation when it has already been valued before.

It has been streneously contended before me that 'Revised Valuation' under Section 172 (2) is different from 'Revaluation'. I am unable to see the distinction -- If an existing valuation is revised it must amount to revaluation. I am therefore unable to accept the argument that 'Revaluation', can only be under Section 172 (3). That Sub-section contains several exceptions to the rule that a valuation can only, be made at the time of General Valuation and then successively after the expiry of every six years. For example, notwithstanding the six years rule, a Bustee with huts upon it may be valued annually if the Standing Finance Committee approves of it and shall be so valued if the owner applies for it (Section 172 (3) (a)). Then again if during the currency of any six-year period, a new building is erected or an existing building is reconstructed or substantially altered or improved or there is a substantial demolition or depreciation it may be revalued. (Section 172 (3) (c) and (d)).

2. Section 174 deals with the case of Sub-division of ownership during the currency of the six year period. If the subdivision is into separate and independent portions capable of separate enjoyment in conformity with the provisions of the Act, then of course separate numbers must be assigned and the premises assessed separately. (Section 174 (iii) ) In other cases, power has been given to assess separately without assigning separate numbers (i) to allot separate numbers and assess separately, even if the portions are incapable of being independent entities in conformity with the provisions of the Act (ii) Under Section 176, the Commissioner may in his discretion assess any outhouse appurtenant to a building, or any portion of a building or land appertaining to any premises separately from the rent of such premises.

3. So far, we have not come across any provision for amalgamation. This power is said to arise by reasonable implication from Sections 175 and 207 of the Act. The relevant provisions are set out below:

'175, If any land or building bearing two or more municipal numbers, or portions thereof, be amalgamated into one or more new premises, theCommissioner shall assess them, on amalgamation, after assigning to them one or more numbers, as the case may be, for the purposes of this chapter. Provided that no assessment on amalgamation of premises shall be made by the Commissioner unless there is a cause for the revaluation of any such premises except on an application being made to him by the owner or owners thereof, in which case such assessment, if made, shall remain in force for the unexpired portion of the period prescribed by Section 172, Sub-section (1) or Sub-section (2) or Sub-section (4).

Provided also that the total assessment on amalgamation shall not be greater than the sum of the previous assessments of the several premises amalgamated except when there is any revaluation of any of the said premises.'

4. Section 207 provides that when objection to a valuation has been made under Section 181, the consolidated rate shall, pending the final determination of the objection, be payable on the previous valuation in the usual manner. There is however a proviso which is very important. This is as follows:

'Provided that- (i) If any premises have, for the purposes of valuation under Section 172, been for the first time valued or subdivided or amalgamated with any other premises, and an objection to the valuation thereof has been made under Section 181, then theconsolidation rate shall, pending the final determination of the objection be paid on such valuation, ....'

5. Mr. Gupta appearing on behalf of the respondents (in C. R. 128 of 1954) admits that there is no express power conferred in the Act for amalgamation. He however argues that the unit of assessment is a 'building'. This unit can however be subdivided and more than one number allotted. Section 175 and proviso (i) to Section 207, refers to the reverse process, namely amalgamations of several premises into one or more premises. Section 175 speaks of such an amalgamation where there is cause for revaluation and proviso (i) to Section 207 expressly speaks of amalgamation for the purposes of valuation under Section 172 (which dealswith general valuation). He argues that such action being contemplated, necessarily carries with it the power to effect it, by reasonable implication. Mr. Ghosh following Mr. Gupta has further arguedthat the words 'Be amalgamated' in Section 175, necessarily implies that the Commissioner has power to amalgamate two premises bearing different numbers, inasmuch as nobody else can alter the unit of assessment. The owner of two different premises can indeed cause a physical amalgamation. For example, where there are two contiguous buildings belonging to the same owner, he can reconstruct them and make them one building. But this would not be amalgamation for purposes of assessment. He would have to move the municipal authorities for doing that or the authorities may do so themselves. Only then can it be said that there has been an amalgamation for purposes of assessment. Since the section contemplates such an act, it is argued that the power to perform it arises by reasonable implication.

6. Mr. Gupta refers to Maxwell on the Interpretation of Statutes 9th Edition, page 360. It is stated there as follows:

'Whenever a corporation is created by Act of Parliament, with reference to the purposes of this Act, and solely with a view to carrying these purposes into execution, not only the objects which the corporation itself may legitimately pursue must be ascertained from the Act itself, but the powers which the corporation may legitimately use in furtherance of these objects must either be expressly conferred or derived by reasonable implication from its provisions.

Where an Act confers a jurisdiction, it impliedly also grants the powers of doing all such acts, or employing such means, as are essentially necessary to its execution.'

7. In 'Baroness Wenlock v. River Dee Co.', (1885) 10 AC 354 at p. 362 (B), Lord Watson said as follows:

'Whenever a corporation is created by Act of Parliament, with reference to the purposes of the Act, and solely with a view to carrying these purposes into execution, I am of opinion, not only that the object which the Corporation may legitimately pursue must be ascertained from the Act itself, but that the powers which the Corporation may lawfully use in furtherance of these objects must either be expressly conferred or derived by reasonable implication from its provisions. That appears to be the principle recognised by this House in -- 'Ashbury Railway Carriage and Iron Co. y. Riche'. (1875) LR 7 HL 653 (C) and in --'Attorney-General v. G. E. Rly Co.', (1880) 5 AC 473 (D).'

8. In 'Deuchar v. Gas Light and Coke Co.', (1924) 2 Ch 426 (E); Pollock M. R., laid down two principles which are to be borne in mind. He said:

'Two Canons which are to be borne in mind should be mentioned. First. Lord Selborne says in (1880.) 5 AC 473 at p. 478 (D), 'I agree with Lord Justice James that this doctrine ought to be reasonably, and not unreasonably, understood and applied, and that whatever may fairly be regarded as incidental to or consequential upon, those things which the legislature has authorized ought not (unless expressly prohibited) to be held, by judicial construction to be ultra vires'.'.

Secondly Lord Loreburn says in -- 'Attorney-General v. Mersey Rly. Co.' (1907) AC 415 (F). 'The rule of law has been laid down in this House' that is in -- 'London County Council v, Attorney-General', (1902) AC 165 (G), and cases there cited -- 'to the effect that it must be shown that the business can fairly be regarded as incidental to or consequential upon the use of the statutory power; and it is a question in each case whether it is so or whether it is not so.'

Learned Counsel for the petitioners however have strongly contended that the principle of reasonable implication should not be introduced because the provision of law we are concerned with is a taxing provision and the statute must clearly lay down the liability. Reference has been made to Craies on Statute Law, 5th Edition, p. 106 where it is pointed out that express and unambiguous language appears to be indispensable in Statutes imposing a tax. In -- 'Canadian Eagle Oil Co. v. R.', (1946) AC 119 (H), Viscount Simon L. C. said:

'In a taxing Act one has to look at what is clearly said. There is no room for any intendment. There is no equity about a tax. There is no presumption as to a tax. Nothing is to be read in, nothing is to be implied. One can only look fairly at the language used.'

On the other hand Lord Russell of Killowen C. J., in -- 'Attorney-General v. Carlton Bank', (1899) 2 QB 158 at p. 164 (I), said:

'I see no reason why any special canons of construction should be applied to any Act of Parliament, and I know of no authority for saying that a taxing Act is to be construed differently from any other Act. The duty of the Court is, in my opinion, in all cases the same, whether the Act to be construed relates to taxation or to any other subject viz,, to give effect to the intention of the legislature; as that intention is to be gathered from the language employed, having regard to the context with which it is employed.'

9. I do not think that we are here dealing with a provision of law imposing a tax, The consolidated rate has been imposed in a different part of the Act and nobody is questioning it. Amalgamation certainly affects the calculation of the rate. But amalgamation entails many other consequences under the Act. It is primarily made for purposes of assessment, but there are many results which have nothing to do with assessment. I am inclined to hold that the power of amalgamation exists and should be held to exist by reasonable implication. But I am not called upon finally to decide this point in these applications, which may be disposed of upon a preliminary point.

10. Assuming that the Commissioner has the power to order amalgamation, the question is as to whether, in these cases he has exercised that power. Let us investigate the facts.

11. In each of these cases what has happened is that the 'Assessor to the Corporation' has served notice or notices upon the rate payer. The notice is entitled 'Special Notice under Section 180 of West Bengal Act, 33 of 1951'. It is addressed to the owner and the number of the premises, is the number, alleged to have been allotted upon amalgamation with the old numbers set out in a bracket, thereunder. This is followed by a statement of the increased valuation, alleged to be due upon ground 4 which is:

'New valuation on amalgamation on estimated annual rent, less statutory allowance for repairs.'

There is no evidence that the Commissioner has ordered any such amalgamation, and the notices are not given by him or on his behalf. Not wishing to rely on technicalities I asked Mr. Ghosh to search for and produce any record of any such order or direction by the Commissioner. He was constrained to admit that no such record exists. All he could put forward is a delegation by the Commissioner of powers under Section 175. This however is of no avail. It is admitted that the power to amalgamate, if it exists at all is vested in the Commissioner. This power cannot be delegated (Section 34) nor has there been a delegation in fact. Section 175 deals with assessment in case of amalgamation. The power to amalgamate is not the same as assessing after amalgamation, but precedes it.

12. But this is not the whole difficulty. Assuming that the power to amalgamate exists in the Commissioner, the exercise of that power affects rights of property of the rate-payer and consequently must be done upon notice to him. What. in fact has, happened is that the amalgamation has been already noted in the assessment Register and the notice published under Section 178, and notice has been given under Section 180 which enables a ratepayer to object to the valuation, under Section 181. The petitioners have strongly contended before me that the notice does not enable them to object to the amalgamation but only to the increased valuation. It is argued on behalf of the Corporation and the Commissioner that the notice does enable objections to be heard on both amalgamation and the increased valuation. It is pointed out that the rate-payers have in fact objected to both in their written objections and the objection will be heard. It is very doubtful whether the notice really enables objections to be heard as to amalgamation. That appears to be treated as a 'fait accompli', because the assessment register has already been altered. But in any' event, even if the notice is a notice of a 'proposed' amalgamation, as Mr. Ghosh calls it, the assessor to the Corporation is not a person authorised to make amalgamation or give notice thereof or hear objections. This is a power which cannot be delegated and the notice must be given by the Commissioner or on his behalf. The decision to amalgamate must be his decision.

13. In view of this, I must hold that the whole procedure followed is not in order and the respondents must be restrained from following it. At the present moment there is no amalgamation. The Commissioner must exercise such power after giving an opportunity to the rate-payer affected to be heard. Thereafter proper notices' must issue. (14) This will give rise to a difficulty which has become inescapable, and has pointedly arisen in C. Rule No. 67 of 1954. What has happened in, that case is as follows. On 9-3-1954, the Assessor to the Corporation issued three notices upon Dr. Ganguly purporting to be under Section 180 of the Act in respect of premises No. 27A, 27B and 27C, Chittaranjan Avenue, increasing the valuation on the ground not of amalgamation, but of increase in estimated annual rent. On 23-3-1954, the list under Section 178 was published. The three notices dated 9-3-1954 were served upon Dr. Ganguly on 24-3-1954. On 26-3-1954, a fresh notice under Section 180 of the Act was issued upon ground of 'New valuation on amalgamation', with a note that this was 'in supersession of the previous notice issued on 9-3-1954'. It is argued on behalf of Dr. Ganguly that after the list was issued under Section 178, it was not open to the Commissioner to alter the valuation by amalgamation or otherwise. Mr. Ghosh states that the alteration was done prior to the publication of the list. The original list has been produced, which shows that the original figures have been penned through and the alterations made in ink. There is nothing to show when it was made and by whom. If I am right in holding that the Commissioner alone can make amalgamations and that he must do so after hearing the parties, then the lists as published, containing the revaluation upon amalgamation are all wrong, so far as the parties affected are concerned. The correct procedure will be for the Commissioner to give notice of amalgamation, hear the parties affected and then revalue the amalgamated premises, where he upholds the amalgamation, and then publish a fresh supplementary list under Section 178 followed by fresh notice under Section 180.

15. The result is that the several rules must be made absolute and there must be a Writ in the nature of Mandamus restraining the respondents from giving effect to the notices under Section 180, mentioned in the several petitions, and from forbearing to give effect to any amalgamation of the previous municipal premises, without following the procedure in accordance with law. There will also be a Writ in the nature of Certiorari quashing any such order of amalgamation as also the impugned notices and the proceedings initiated thereby. Nothing in this order will prevent the respondents from now proceeding to act in accordance with law.

16. There will be no order as to costs.


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